Can the Next President Overturn Roe v. Wade?

We've already noted earlier that Palin has switched the focus of her attacks on Obama to his position on abortion today. This CNN article reports a bit more on her comments today.

In reading this CNN article, however, I just realized how her statements regarding Obama's position that he would uphold Roe v. Wade seems to contradict statements she made earlier to Couric as described on this site here. In that interview, she said,

"But, you know, as a mayor, and then as a governor and even as a vice president, if I’m so privileged to serve, wouldn’t be in a position of changing those things but in supporting the law of the land as it reads today."

The "those things" she was referring to above were Supreme Court decisions which she does not agree with or support. In today's speech in Pennsylvania, however, she says of Obama,

"A vote for Barack Obama is a vote for activist courts that will continue to smother the open and democratic debate that we deserve and that we need on this issue of life," she said. "Obama is a politician who has long since left behind even the middle ground on the issue of life."

Obama opposes any constitutional amendment to overturn the Supreme Court's decision in Roe v. Wade and disagreed with Supreme Court ruling to uphold the "Partial Birth Abortion Ban Act." He did not cast a vote on Prohibiting Funds for Groups that Perform Abortions amendment in 2007.

She implies here that the next president would have the ability to overturn Roe v. Wade via 1) nominations of more conservative justices, 2) or via constitutional amendments.

I find it misleading to suggest that the next president would be able to do very much to overturn Roe v. Wade.

1) Article V of the Constitution makes it clear that the amendment process is in the hands of the legislative, not the executive branch.

Regarding the possibility of a constitutional amendment, Article V of the Constitution states,

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

This means that an amendment must be proposed either by Congress or a national convention requested by the states. As described here in Wikipedia, an amendment is deemed "proposed" by Congress when the proposal is agreed upon by two-thirds of both the House and the Senate. In the case of a national convention, "two-thirds of the state legislatures may convene and "apply" to Congress to hold a national convention, whereupon Congress must call such a convention for the purpose of considering amendments." Once proposed, the amendment can not be accepted until it has been ratified by 3/4 of the states.

Clearly, Article V indicates that the constitutional amendment process is largely controlled and dictated by the legislative branch, not the executive branch. It is not within the president's authority to personally institute a constitutional amendment.

2) The president may nominate justices but these nominations must be confirmed by a majority of the Senate and once nominated, the president does not have influence to dictate what these justices decide.

Article II of the Constitution gives the president the authority to nominate justices, who can then be appointed with the "advice and consent of the Senate." So clearly, the president cannot himself appoint anyone to the Supreme Court but he can nominate people who can be appointed with the agreement of a majority of the Senate.

Once a justice is appointed, Article III dictates his or her tenure according to "good behavior," which basically means that the justice will serve for life unless impeached and convicted by a congressional vote. As such, the justice cannot be removed from tenure by the president and is under no obligation or pressure to decide cases in a way that the president would prefer.

Conclusion: Based on the discussion above, I think that the president has very little power to overturn Roe v. Wade, or any other Supreme Court decision for that matter.

With regards to the two points Palin describes, I think she was more correct during her interview with Couric and her current attacks appear misleading.